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IMPEACHMENT. 


By THEODOEE W. DWIGHT. 



( Reprinted from the American Law Register for March, 1867.) 


E. C. MAEKLET E SON, ERS. 










TRIAL BY IMPEACHMENTJ 


The subject of trial by impeachment has recently assumed 
extraordinary importance. As it is a topic which lies beyond 
the ordinary range of legal study (this mode of trial being rarely 
exercised and practically dormant), 1 have thought it well to seize 
upon the factitious interest which at present attends it, to make 
some impression upon your minds. Although the knowledge of this 
subject is- but of comparatively little direct advantage to a law 
student, yet it is not altogether without its uses, as it sheds light 
upon some prominent historical questions, and gives to the 
biographies of some of the most eminent men of England a 
tragic and pathetic interest. Circumstances also tend to show 
that impeachment will be more prominent in politics than formerly, 
so that new reasons for comprehending the subject are now pre 
senting themselves. 

The Constitution of the United States simply refers to the 
subject of impeachm.ent without defining it. It assumes the 
existence of this mode of trial in the law, and silently points us 
to English precedents for knowledge of details. We are reminded 
of the statement, so often considered before, that “ the constitu- 


* This article was prepared by Prof. Theo. W. Dwight, as a lecture to the 
students of the Columbia College Law School, New York, and we have thought 
that the interest in the subject at the present time would make it specially acceptable 
to the profession,— Eds. A. L. R, 

VoL. XV.—17 


(2S7) 



258 


TKIAL BY IJVIPEACHMENT. 


tion is an instrument of enumeration, and not of definition.’’ 
This consideration serves to point out the difficulty and delicacy 
of the subject. The precedents to be examined are scattered 
over numerous volumes of state trials, or are collected in ill- 
arranged and now-forgotten treatises. They were rendered 
during the excitements of the most heated party contests; they 
were produced under the inflammatory harangues of demagogues 
and party leaders; interest, fear, and faction operated upon the 
minds of the court, which, though an august tribunal, is easily 
swayed, or at least affected, by the influences which beset a 
legislative assembly, of a kind unfavorable to the calmness of 
judicial action. Add to this that the case has but a single dis¬ 
cussion. In all our ordinary judicial proceedings we have courts 
rising one above another in rank, in which repeated discussions 
are had, and a wide opportunity is given for the detection of 
errors and the rectification of mistakes of judgment. But’in the 
grave questions decided on an impeachment, a single tribunal 
disposes of the question absolutely and for all time. It is doubt¬ 
ful whether there is any power to reverse a judgment once pro¬ 
nounced, though the court itself is convinced of its mistake. 
There should be no reversal, of course, when the criminal has been 
once acquitted.^ 

With these introductory remarks, I proceed to a consideration 
of the topics of the lecture. 

It will be discussed under four principal divisions;— 

I. The Nature of an Impeachment. 

II. The Crimes for which this mode of Prosecution may 

BE RESORTED TO. 

III. The METHOD OF PROCEDURE. 

IV. General remarks. 

I. The Nature of an Impeachment .—When a criminal act has 
been committed, it may evidently be regarded in three aspects: 
first, the injury to the individual or his family may be considered ; 
tjecond, the wrong to the executive officer charged with the 

1 A singular embarrassment arose in the trial of Attorney-General Herbert. 
The House of Lords had resolved that the Attorney-General should not lose that 
office. At a subsequent stage of the proceedings they resolved that he be incapable 
of holding any office whatever, except the one he now holds, though it was for 
misconduct in that office for which he was impeached : 4 How. S. T. 129. 




TRIAL BY IMPEACHMENT. 


259 


administration of the laws may be looked at; and, third, the mind 
may dwell upon the general wrong done to the state or ‘‘the 
people,” as we say in modern times. This view was early taken 
in the common law ; the injury to the individual was redressed 
by a proceeding called an appeal; the injury to the king, by a 
process called an indictment; the wrong to the entire nation, by 
a proceeding termed an impeachment. In process of time the 
injury to the individual came to be regarded as a private and 
not as a public wrong, so that in the progress of the law there 
remained two great criminal proceedings—indictment and im¬ 
peachment.^ 

The relation of these proceedings to Magna Charta may be 
briefly noticed. It will be remembered that the leading provision 
of that instrument is that no freeman shall be deprived of his 
life, liberty, or property, except by the judgment of his peers 
and the law of the land. These words only apply to a proceed¬ 
ing on the part of the king, and do not afiect one on the part 
of the nation. In other words, they have reference to criminal 
proceedings in ordinary courts of justice, and have nothing to do 
with the process of impeachment: 2 Hallam’s Const. Hist. 445. 
The United States Constitution, following the same idea, provides 
that the trial of all crimes except in cases of impeachment shall be 
by jury. 

It will tend to a clearer understanding of our subject if the 
resemblances and contrasts of an indictment and impeachment be 
carefully pointed out. An indictment is a presentment in writing 
by a body of men not less in number than twelve nor more than 
twenty-three, of crimes committed within their own county. This 
presentment is made in an ordinary court of justice, e. g. the 
King’s Bench. Its only efi'ect is to pronounce the opinion of a 
majority of these men (grand jury) that there is apparent reason 
to believe that there has been a criminal violation of the law of 
the land by the person against whom the indictment is found. 
He is therefore arrested, and either held in custody or required 
to find sufficient security to await his trial. Notwithstanding his 
indictment, the law still presumes his innocence, and takes no 
action against him except that which is necessary to secure his 

1 It is said in 8 How. S. T. 231, that one and the same offence may entitle 
several persons to several remedies ; as in murder, at common law the king may 
indict, or the heir or wife of the murdered party may appeal. 



260 


TRIAL BY IMPEACHMENT. 


attendance at the trial. Anything more than this, any depriva¬ 
tion of property, any forfeiture of his civil rights, while the 
indictment is pending, is wholly opposed to the genius and spirit 
of the common law. The indictment in due course of law is 
brought on to trial before an assigned term of the criminal court. 
The case must now be presented to a trial-jury presided over by 
a judge. The government who has in charge the criminal must, 
notwithstanding the indictment, overcome the presumption of the 
prisoner’s innocence; and only by the superiority of its proofs 
can a verdict be obtained against the prisoner. When judgment 
is entered upon the verdict, for the first time commence the 
penalties and forfeitures of the law. The convicted criminal 
may lose his property, his liberty, or life, as the result of the 
proceeding. It is thus seen that an indictment is nothing more 
than a method of trial established to introduce solemnity, delibera¬ 
tion, and caution into judicial proceedings. It pre-supposes the 
existence and definition of crimes. It is a method of trial, and 
nothing more. 

If we now recur to an impeachment, it will be found that it, 
too, is a presentment by a body of men that a crime has been 
committed. It is no longer a presentment by a small number 
of twenty-three men, but of the entire House of Commons, 
representing the state which is supposed to have been injured. 
It, too, is made in writing under the name of Articles of Impeach¬ 
ment. The tribunal before whom the articles are brought is a 
court of justice, not the ordinary court, it is true, but still a 
court composed of the members of the House of Lords. It may 
entertain a presentment for any crime, whether it be a felony or 
misdemeanor, whether it be committed by a peer or commoner, 
and may attach to conviction the ordinary punishments.^ As a 
matter of course, an impeachment is not confined to a particular 
county, as an indictment is, but the House of Commons may 
present cases arising anywhere within their jurisdiction. For 
this reason, impeachments were sometimes resorted to, because 
if treason were committed in Scotland or Ireland by an English¬ 
man, though it might not be triable in an ordinary criminal court 
m England, as it was not committed in an English county, it is 

» Though Blackstone controverts the opinion that a commoner may be impeached 
for a crime such as treason, yet the weight of authority and reason is overwhelm¬ 
ingly opposed to this view. See 2 Hallam’s Const. Hist. 445, Bost. cd. 1854. 





TRIAL BY IMPEACHMENT. 


261 


Btill under the jurisdiction of the House of Lords. Thus Lord 
Lovat, who, while in Scotland, was concerned in the rebellion 
of 1745, was impeached, as he had committed no overt act of 
treason in England so as to bring the case before an English 
jury : 5 Campbell’s Lord Chancellors 106. His co-conspirators 
in England were indicted and not impeached. 

The effect of an impeachment, like that of an indictment, is 
simply that there is apparent reason to believe that there has 
been a criminal violation of the laws by the individual impeached. 
He may in proper cases be arrested and held in custody or re¬ 
quired to give security. The law still presumes his innocence, 
and can do no more than to take such steps as may be necessary 
to render his attendance at the trial certain. The trial must be 
conducted in accordance with the rules of evidence observed in 
the ordinary courts; the person impeached can only be convicted 
of a crime known to the law; the punishment follows that at¬ 
tached to the same crime by the ordinary courts. Forfeiture of 
rights can only occur after conviction. Impeachments, like in¬ 
dictments, are methods of procedure in criminal cases, and 
nothing more.^ 

The proceeding by impeachment being purely judicial, it must 
be distinguished from a Bill of Attainder and of Pains and 
Penalties. These must be regarded as pure legislative acts. 
The two houses then enact that a particular person is guilty of a 
crime. They may sometimes go through certain forms of judicial 
inquiry, but their decision is a law, not a judgment. Such bills 
are in utter violation of the principles of true constitutional 
government, as they confound legislative with judicial power. 
An impeachment is decided by the House of Lords alone. Any 
attempt on the part of the House of Commons to participate in 
this judicial power has always been highly resented by the House 
of Lords, and would not now be claimed.^ 


* “Impeachments are but a method of trying offences,” 15 How. S. T 68. 
“ An impeachment is a course of proceeding for treason the same as in case of 
grand jury, which is another method,” 15 Id. 795. “They (impeachment and 
indictment), differ in point of form,” Id. 886. “Impeachment is in the nature 
of an indictment. There must be a sufficient statement to bring the accused to 
plead and not to demur,” per Finch, 6 Id. 354. Such is the language of many 
authorities. 

2 In FloocVs Case, 2 How. S. T. 1156, the House of Lords resolved that the 
Commons had no power of judicature—no coercion against any but in matters 
concerning their own house. 



262 


TEIAL BY IMBEACHMENT. 


It is also important to distinguish an impeachment from a trial 
before the Court of the Lord High Steward.” The office of 
this court is briefly this: whenever a peer is indicted in the ordi¬ 
nary courts, in order that his case might be removed thence to be 
tried by his ‘‘ peers,” a commission was issued by the king to a 
particular nobleman to act as judge (Lord High Steward). Such 
other peers as the king, thought fit to name, not less than twelve 
in number, wei^ associated with the Lord High Steward to act as 
triors of the questions of fact, or as jurors. It is substantially a 
court of commission of oyer and terminer; the High Steward 
decides the law; the other peers try the fact: 4 Hatsell’s Pre¬ 
cedents 278. This court differs from a court of impeachment in 
three respects : first, it only tries an indictment found by a grand 
jury in a county ; second, it may, and perhaps now must, be held 
during a recess of Parliament; third, it may, at common law, 
consist of a number less than the whole House of Peers. The 
king might resort to this tribunal to ruin a hated nobleman, as he 
could pack it with his own creatures. It was for this reason that 
the great Earl of Clarendon fled from England, because he learned 
that Charles II. intended to bring him before the Court of the 
Lord High Steward.^ 

It is the more important to distinguish the Court of Impeach¬ 
ments from that of the Lord High Steward, as the president of 
the former court in capital cases is called by the same name. It 
is therefore easy to confound cases in the two courts, unless care 
is taken to observe the distinctions which have been pointed out. 

The result is, that there are in general by the English common 
law two parallel modes of reaching a particular criminal: he may 
either be indicted or impeached. If he is indicted first he may 
be impeached afterwards, and the latter trial may proceed not¬ 
withstanding the indictment.^ On the other hand, the King’s 
Bench held in Fitzharris^s Case, that an impeachment was no 
answer to an indictment in that court. 


* The stalate of 7 Wm. III., c. , prevented the packing of the court in cases of 
treason and misprision of treason by requiring the whole number of peers to be 
summoned at such trials. 

2 Thu.i in Stafford’s Trial, the Lord High Steward said, “You are not tried 
upon tne indictment of treason found by the grand jury, though that too be in the 
case You are prosecuted and pursued by the loud and dreadful complaint of the 
Commons, and are to be tried on the presentment made by the grand jury of the 
whole nation7 How. S. T. 1297. 



TRIAL BY IMPEACHMENT. 


263 

It may be asked, why, then, is the cumbrous process of im¬ 
peachment ever resorted to ? The answer is, that there were ^ 
often found in England persons who could not readily be tried by 
the common law courts, either owing to an influence which over¬ 
shadowed the ordinary tribunals, or because technical rules of 
practice made the usual remedies scarcely worth pursuing. / 
Moreover, impeachment was often adopted as an instrument oi 
faction, and was especially active when society was disturbed by 
party contests or was in the throes of a revolution. In fact, 
through this process. Parliament ultimately triumphed over the 
executive, and parliamentary government with ministers respon¬ 
sible to the Commons for executive acts was formed. ,; 

When the United States constitution was framed, trial by 
impeachment was fully developed. It was not, however, adopted 
in that instrument as a regular mode of criminal procedure, to be 
employed in lieu of an indictment. It was made a means of trial 
of a crime so far as it had a political bearing. It is used as a 
means of depriving officers of their offices and of disqualifying 
them from holding such positions in the future. Still it is requi¬ 
site that a crime should be committed as a basis for the accusation. 
The constitution provides, in substance, that the offence, so far as 
it has a purely, criminal aspect, shall be tried in the ordinary 
courts; while so far as it affects the official character, it shall be 
the subject of impeachment.^ Though the English theory and 
procedure still substantially continue, impeachment in our law 
has a comparatively narrow scope. The House of Representatives, 
in analogy to the English House of Commons, has the exclusive 
power of impeachment, and the judicial power is vested in the 
Senate, in analogy to its deposit in the House of Lords. 

II. The crim^esfor which an impeachment may he had .—Upon 
this topic it is important to make two inquiries: first, what were 
the subjects under the English law which could be tried by 
impeachment; second, what cases under our system can be tried 
in this manner. 

In examining the first question, it must be conceded that the 
judgments of the courts are not absolutely uniform. This could 
hardly be expected, both because there is no system of appeal by 


* This wise provision is traceable to the N. Y. Cons, of 1777, and probably to 
the pen of John Jay. 



264 


TRIAL BY IMPEACHMENT. 


means of which authoritative precedents could he established, and 
because the House of Lords has been at times impelled by faction 
or overborne by importunity or overawed by fear. The weight 
of authority is therefore to be followed. So said the great Selden, 
in a speech which he made as one of the committee of the House 
in the impeachment of Ratcliffe. “ It were better to examine 
this matter according to the rules and foundations of this House 
than to rest upon scattered instances4 How. S. T. 47. The 
decided weight of authority is, that no impeachment will lie 
except for a true crime, or, in other words, for a breach of the 
common or statute law, which, if committed within any county of 
England, would be the subject of indictment or information. 
This proposition is plainly inferred from the doctrine already 
established, that impeachment is simply a method of procedure. 
It presupposes the existence of the crime for the redress of which 
a trial is instituted. What would have been the check upon the 
most arbitrary action of the House of Lords, if it might decide 
the existence of a common-law crime without reference to already 
settled rules ? This tribunal was only rarely called to act—during 
the reign of the Tudor family its functions were entirely sus¬ 
pended. The rules of the common-law courts were in daily dis¬ 
cussion and exercise. The fundamental distinction between felo¬ 
nies and misdemeanors was fully recognised by the House of 
Lords in cases of impeachment. It is asserted, without fear of 
successful contradiction, both upon authority and principle, not¬ 
withstanding a few isolated instances apparently to the contrary, 
that no impeachment can be had where the King’s Bench would 
not have held that a crime had been committed, had the case been 
properly before it. There are no doubt extreme cases favoring an 
opposite view. Thus, the Duke of Richmond was impeached in 
1641, among other frivolous charges, on the ground that he had 
proposed an adjournment while a member of the House of Lords. 
The Commons were so offended with' him for attempting to check 
the enactment of a bill which they had much at heart, that they 
accompanied the impeachment with a petition to the king to 
remove the duke from all offices of public trust, in which petition 
the Lords refused to join: 4 How. S. T. 120. This is but the 
excess of the lower House, resolved that no obstacle shall stand 
in the way of its shortest path to its destined goal. In early 
times a quarrel between great noblemen excited the interest of 


TRIAL BY IMPEACHMENT. 


265 


the public to such an extent, that the matter was brought up for 
disposition in Parliament. In such a feud between the Bishop 
of Winchester and the Duke of Gloucester (a. d. 1451), there 
was a formal award of acquittal of the party accused, and the 
Lords “ enjoined them to be firm friends for the future, and by 
such inducements wrought upon them that they shook hands, and 
parted with all outward signs of love and agreement * * 

which gave a mighty satisfaction to all people:” 1 How. S. T. 
152. Perhaps no more ingenious plan has been devised to settle 
the strifes of embittered politicians, since, while it soothes the 
spirit, it secures notoriety. 

A strong instance of the exercise of a broad power of impeach¬ 
ment is found in the last charge of a series made by the Commons 
against one of the worthless judges of Charles II.’s reign, Ch. J. 
ScROGGS. Its words are: “ Whereas, said W. Scroggs being 
advanced to be chief justice of the Court of King’s Bench, ought 
by a sober, grave, and virtuous conversation, to have given a 
good example to the King’s liege people, and to demean himself 
answerable to the dignity of so eminent a station; yet he, the 
said Sir W. Scroggs, on the contrary, by his frequent and notori¬ 
ous excesses and debaucheries, and his profane and atheistical 
discourses, doth daily alFront Almighty God, dishonor his Majesty, 
give countenance and encouragement to all manner of vice and 
wickedness, and bring the highest scandal on the public justice 
of the kingdom.” This was an article in an impeachment for 
high treason ! The articles were never tried, so that they only 
serve to show how far the doctrine of “ constructive treason” may 
be pushed by ingenious committees: 13 Lords Journals 737. 

The danger of a loose construction of the judicial power of a 
legislative body was most strikingly shown when the House of 
Commons during the revolution, in consequence of the abolition 
of the House of Lords, had centered within it both the power of 
impeachment and the power of trial. At the trial of James Nay¬ 
lor, an insane ranter, who would now be sent to a lunatic asylum, 
there was a large minority voting to put him to death for blas¬ 
phemy. The majority prevailed by deciding to whip him, set him 
in the pillory, bore his tongue through with a hot iron, and to con¬ 
fine him in Bridewell at hard labor. 

Undoubtedly some cases which at the present time appear inex¬ 
plicable on any sound theory, depended on a construction of 


266 


TRIAL BY IMPEACHMENT. 


statutes now forgotten, or upon a violation of official oaths, or a 
perverted application of legal rules to instances not properly 
governed by them. Thus, a prominent citizen of London was 
impeached for presenting a petition to Parliament, which now 
seems quite harmless ; but it was asserted to he a seditious libel, 
and consequently criminal: 4 How. S. T. 152. 

While the irregular cases upon this subject are few, the rule 
that a true crime must have been committed is settled beyond 
dispute. This is clearly shown by the way in which the House 
of Commons when flushed with power or chafed with indignation 
rebel against it. Over and over again they assert that the great 
statute of 25 Edw. III., defining treason, is not applicable to trial by 
impeachment. They plausibly maintained that the statute was 
only for the courts of ordinary criminal justice ; and that the 
statute itself applied a different rule to trial by impeachment. 
But the law was settled after the most extended and prolonged 
discussion in favor of the doctrine that the court of impeachment 
must administer the same law as the criminal court: 12 How. S. 
T. 1213 ; 6 Id. 346. Thus the Earl of Orrery was not tried in 
A. D. 1669, as the offence charged was thought not sufficient to 
constitute treason, and the case was directed to be heard in a 
court of law: ^ 6 How. S. T. 917. 

The stringency of these rules often led the Houses, when under 
excitement, to pass Bills of Attainder. They could enact that an 
obnoxious person was guilty, if they could not prove his offence. 
This course was resorted to in the well-known case of the Earl of 
Strafford. So, too, when the Earl of Clarendon in Charles II.’s 
time could not be successfully impeached, the king intended to 
bring him before the Court of the Lord High Steward, which 
could be organized so as to secure a conviction: 3 Campbell’s 
Lord Chancellors 243-4, Lond. ed. 1848. 

The later and most authoritative decisions are clear to this 
effect. In the impeachment of the Earl of Macclesfield, who was 
a great lawyer and at one time Lord Chancellor, the case was put 
exclusively on such criminality as is the subject of an indictment. 
It was argued that he had violated the statute of 6 Ed. VI., c. 16, 


1 In the case of Inigo Jones, against whom a charge was made of pulling down 
a church, the Commons refused to impeach on the ground that it was a matter of 
private right: 4 Hatsell’s Precedents 132. 



TRIAL BY IMPEACHMENT. 267 

concerning the administration of justice, while he rested his 
defence on the fact, that it was not criminal for a judge to receive 
presents either by common or statute law. The decision of this 
case against Macclesfield is criticised by Lord Mahon and others, 
but is defended by Campbell, on the ground that the statute of 
Ed. VI. Avas violated: 16 How. S. T. 823; 4 Camp. Lord Chan. 
536. This is one of the best-considered cases on the subject, and 
preceded the formation of our Constitution by only a few years. 

The last case of impeachment in England, that of Lord Melville 
in 1806 for malversation in ofiice, is very instructive. The ques¬ 
tion was put to the judges whether the acts with which he was 
charged were unlawful so as to be the subject of information or 
indictment. It having been decided that they were not. Lord 
Melville was acquitted: 29 How. S. T. 1470. These last two 
decisions, made when there was an entire absence of party feeling 
and the court acted throughout with judicial impartiality, de¬ 
servedly outweigh scores of instances, if they could be produced, 
which have occurred in the heat and frenzy of a revolution. 

The court in general relies with close dependence upon the 
opinion of the common-law judges on the law of crime and crimi¬ 
nal evidence, often exacting their continuous attendance to the 
detriment of other public business.^ 

The text-writers and leading jurists are of the same opinion. 
Says Wooddeson ; “ The trial differs not in essentials from crimi¬ 
nal prosecutions before inferior courts. The same rules of evi¬ 
dence, the same legal notions of crimes and punishments, prevail. 
For impeachments are mJt framed to alter the laAV, but to carry it 
into more effectual execution where it might be obstructed by the 
influence of too poAverful delinquents or not easily discerned in 
the courts of ordinary jurisdiction by reason of the peculiar 
quality of the alleged crimes. The judgment thereof is to be 
such as is Avarranted by legal principles or precedents:” Lec¬ 
tures, vol. 2, p. 611. So Cushing, in his “ Law and Practice of 
Legislative Assemblies,” says: ‘‘The proceedings are conducted 

• In Lord Clarendon's Case, the .Lords inquired of the judges if there was any 
treason. As they answered in the negative, it was so decided : 4 Hatsell’s Prece¬ 
dents 153-4 ; see also opinion in the Case of the Earl of Danhy, Id. 180. In 
Warren Hastings' Trial, the Lords consulted the judges on nearly every point of 
evidence that arose: 4 Id. 282. The judges were ordered to attend Dr, SachevereWs 
Trial till it was over, but afterwards three of their number were permitted to pro¬ 
ceed on their circuit: Id. Their opinion was asked on the merits of the case. 




268 


TRIAL BY IMPEACHMENT. 


substantially as they are upon common judicial trials as to the 
admission or rejection of testimony, the examination and cross- 
examination of witnesses, and the legal doctrines as to crimes 
and misdemeanors § 2569. Lord Chancellor Cowper, in an 
impeachment case not long before our revolution (a. d. 1715), 
said : “ Though one of your Lordships supposes this impeachment 
to be out of the ordinary and common course of law and justice, 
it is yet as much a course of proceeding according to the common 
law as any other whatever. If you had been indicted, the indict¬ 
ment must have been removed and brought before the House of 
Lords, Parliament sitting. In that case, it is true, you had been 
accused by the grand jury of one county ; in the present, the 
whole body of the commons of Great Britain by their representa¬ 
tives are your accusers:” 4 Hatsell 295. 

The framers of the New York Constitution of A. D. 1777 held 
this view, for they couple together in the same sentence, impeach¬ 
ments and indictments, as though they were only modes of trial. 
“ In every trial on impeachment or indictment for crimes or mis¬ 
demeanors, the party impeached or indicted shall be allowed 
counsel as in civil actions:” Art. 34.^ 

I have dwelt the longer on this point because many seem to 
think that a public officer can be impeached for a mere act of 
indecorum. On the contrary, he must have committed a true 
crime, not against the law of England but against the law of the 
United States. As impeachment is nothing but a mode of trial, 
the Constitution only adopts it as a mode of procedure^ leaving 
the crimes to which it is to be applied to be settled by the general 
V rules of criminal law. 

A basis for a very important conclusion has now been laid. It 
j is this: as there are under the laws of the United States no 
j common-law crimes, but only those which are contrary to some 
j positive statutory rule, there can be no impeachment except for a 
violation of a law of Congress or for the commission of a crime 


1 Says Blackstone, “ An impeachment is a prosecution of the already known 
and established laAv:” 4 Com. 259. The judges were of opinion in Lord Claren¬ 
don''s Case, that the evidence on an impeachment must be the same as on an indict¬ 
ment : 6 How. S. T. 514. Mr. Webster has well expounded the whole subject in 
his speech in defence of Judge Prescott. Though he made an argument as counsel, 
yet his remarks on this point are carefully elaborated and characterized bv great 
precision of statement. Webster’s Works, Vol. 5, pp. 513-515. 




TRIAL BY IMPEACHMENT. 


269 


named in the constitution. English precedents concerning m-J 
jpeachahle crimes are consequently not applicable. > 

There was for a long time a fluctuation of opinion on the point 
whether the common law crimes did not exist under the general 
government. Justice Story lent the great weight of his influence 
to the opinion in favor of their existence. His discussion of the 
subject of impeachment rests upon this view. Mr. Rawle is of 
the same opinion. Both of these eminent writers admit that if 
there arc no common-law crimes for which indictments can he 
brought, there are none for which impeachments can he instituted. 
Mr. Rawle is especially clear upon this point. “ The doctrine 
that there is no law of crimes except that founded in statutes 
renders impeachment a nullity in all cases except the two expressly 
mentioned in the constitution, treason and bribery, until Congress 
shall pass laws declaring what shall constitute the other high 
crimes and misdemeanors:’’ Rawle on the Constitution, p. 273, 
ed. 1829 ; Story on the Constitution, title “ Impeachment.” 

That there are no crimes against the United States which are 
not statutory, is fully proved by a great number of cases collected 
by Mr. Wharton in his work on Criminal Law. Though he dis¬ 
sents from this view, he acknowledges that it is settled by the 
decisions: §§ 163-174., The decisions of the Senate, as a court 
of impeachment, should not be regarded as adverse to this view. 
In the three cases already tried, of Pickering, Chase, and Blount, 
only one, Pickering, was condemned. His case was heard 
ex parte^ as he did not appear, and was decided by a strict party 
vote : 2 Hildreth’s History 618. As far as precedent is con¬ 
cerned, the question in that court is still open and should be 
decided in accordance with principle.^ 

The result is, that unless the crime is specifically named in the , 
constitution, impeachments like indictments can only be instituted , 
for crimes committed against the statutory law of the United | 
States. 

III. The method of procedure. 

It Will not be necessary to go into special detail upon this 


* See, among other cases, 1 Wash. C. C. 84; U, S. v. Maurice, 2 Brock. 96; 
U. S. V. N. Bedford Bridge, 1 Woodb. & Minot 401 ; U. S. v. Lancaster, 2 

McLean 431. 



270 


TEIAL BY IMPEACHMENT. 


subject, except upon those points which involve great constitu¬ 
tional inquiries. There are, however, some topics connected with 
this matter of vast practical importance, such as the right to sus¬ 
pend an officer from his office while the trial is in progress. 
While other points connected with procedure will be briefly 
alluded to, it is intended to treat the one in question with a ful¬ 
ness justified by its importance. 

When an impeachment has been resolved upon, a member usu¬ 
ally rises in his place in the House of Commons, and makes a 
charge of crime which he supports by proofs and moves for an 
impeachment. If such is the determination, the member in ques¬ 
tion is ordered to go to the House of Lords in company with 
others to impeach the accused. The formal articles of impeach¬ 
ment are subsequently prepared. This course, however, w^as 
deviated from in the impeachment of Warren Hastings, and that 
of Elijah Impey (Dec. 1787), in which instances a member of the 
House presented at once from his place formal articles of im¬ 
peachment. In this country, the impeachment is commonly 
brought forward by report of a committee to whom the matter 
has been previously referred. 

The most important points connected with procedure are arrest 
and suspension. These questions do not appear to have been 
anywhere systematically considered, and will be discussed 
separately. 

The subject of arrest under the English system is of great con¬ 
sequence, as it secures the attendance of accused parties to abide 
the event of a proceeding which may involve liberty or life. 

The rules-of arrest distinguish between commoners and peers. 
A commoner may be arrested upon any charge ; a peer can only 
be required to appear as a criminal in the case of high treason or 
other capital cause.* The Commons may arrest in the first in¬ 
stance, and in a proper case hold the accused to bail Avhen the 
prisoner has been delivered to the House of Lords, that body has 
the control and may admit to bail if the case justifies it.^ 


‘ 15 How. S. T. 806 ; Id. 1170; 14 Id. 240, 287. 

2 4 Ilatscll’s Precedents 256. 

2 15 How. S. T. 20; Dr. SachevereWs Case, 4 Hatsell 265 ; Commons’ Journal, 
22 Dec. 1709. A form of recognisance of bail is found in Lords’ Journals, 22 
and 23 Dec. 1640, 4 Hatsell 128. The Commons often interfered with the discre^ 




TRIAL BY IMPEACHMENT. 


271 

The most stringent measures of arrest have been sometimes 
resorted to. One of them is thus described: ‘‘ Maxwell (the 
officer of the court) came to the King’s Bench where the judges 
were sitting, took Judge Berkley off the bench and carried him 
away to prison; which struck a great terror in the rest of his 
brethren then sitting in Westminster Hall, and in all his pro¬ 
fession:” Whitelocke’s Memorials, p. 39. 

In the United States system of impeachment, no arrest is 
necessary. If the accused when properly summoned does not 
appear, the case may be heard and judgment rendered in his 
absence. The punishments do not require any personal presence 
for their administration, and they cannot be evaded by his non- 
attendance. 

Suspension from office .—Can the accused be suspended from 
office during the progress of the trial ? This subject is of vast 
importance in case of the impeachment of a President, as an 
assertion of such a power might lead to the utmost confusion and 
perhaps to civil war. 

I strongly believe that there can be no suspension from office, 'I 
on two principal grounds: 1st, from the practice in England; \ 
2d, from the true construction of the language of the United ‘ 
States constitution. 

1. The cases in the English practice admit of a threefold 
classification. 

(1) . Impeachable crimes committed by a member of the House 
of Commons. 

(2) . Like crimes on the pi'rt of a member of the House of 
Lords. 

(3) . Similar charges against a person holding an administrative 
or judicial office, whether a member of either House or not. 

(1). An instance of the first kind is found in the impeachment 
of a Sir William Penn, while he w^as a member of the House of 
Commons. He was suspended by that House from his place 
ffierein while the trial was going on: 6 How. S. T. 872. The 
power to suspend is necessarily included in the power of expul¬ 
sion. Accordingly, Sir John Bennett, who was a member of the 


tion of the Lords. In one case, bail was alloAved, then, on the remonstrance of the 
Commons, refused, and afterwards allowed : 4 How. S. T. 56, 82. In one case, a 
suggestion is made to the Lords, that the gaol is the best place for the prisoner. 



272 


TRIAL BY IMPEACHMENT. 


House, and at the same time Master in Chancery and judge of a 
Probate Court (Prerogative Court of Canterbury), being accused 
of bribery and judicial corruption, was expelled from the House 
and charges thereupon made by impeachment: 4 Hatsell 121; 
14 How. S. T. 288-9. See in 8 How. S. T. 166, a like expul¬ 
sion of one Brunckard. 

(2) . In cases of the second class, a distinction must be taken 
between misdemeanors and felonies. In case a member of the 
House of Lords is charged with a misdemeanor, he is allowed to 
remain in his place, and to vote upon all matters which do not 
concern the trial of the charge upon the merits: Ca%e of the 12 
Bishops, 4 Hatsell 161. 

On the other hand, where the trial is for a capital crime, such 
as treason, he may be sequestered from his place and kept in 
close custody in the Tower or otherwise. This course has been 
adopted in many instances. It will not be followed in a case of 
treason unless the offence is so specially charged, that on the 
perusal of the articles of impeachment, it can be seen that if the 
charge is true, the offence has been committed: Lord Claren¬ 
don's Trial, 6 How. 367. 

(3) . The last class of cases includes those where an officer is 
charged with malversation in office. These must be separated 
into two subordinate divisions: one, where the office is holden at 
the king’s pleasure; the other, where the tenure is -certain, so 
that the officer has a claim to continue in his office. 

Offices held at the king’s pleasure are in the main (so far as 
questions have arisen), offices of trust and judicial. All that the 
House of Commons ever pretended to ask in such cases was, that 
the Lords should concur with them in addressing the king to 
remove or suspend the office-holder. 

An “ address” is not a judicial but a legislative act. It is in 
the nature of a joint resolution. Still, no case, as I believe, can 
be found in which the Lords ever consented to join with the Com¬ 
mons to address the king, to remove or suspend a judicial or other 
like officer during the course or progress of an impeachment. On 
the other hand, the precedents of refusal to unite with the Com¬ 
mons in such an address are numerous. Nor did the Lords alone 
ever address the king to that effect under the like circumstances, 
although they have done so at the close of the trial. These pro- 


TEIAL BY IMPEACHMENT. 273 

positions, so far as they are affirmative in their nature, demand 
the support of authorities. 

When Lord Bacon was impeached and confessed his crime, “ a 
difficulty remained in proceeding further while he retained the 
Great Seal; for, by the rules and customs of the House of Lords, 
a defendant produced before them is to receive sentence on his 
knees at the bar, and the Lord Chancellor, if present, must pre¬ 
side on the woolsack and render sentence. This embarrassment 
was removed on the 1st of May, when the king finding all further 
resistance hopeless, sent the Lord Treasurer to demand the Great 
Seal, which Bacon surrendered:’’ 2 Camp. Lord Chan. 408, 
Lond. ed. 1858. Here, we have most clearly the principle that 
the Lord Chancellor could not lose or be suspended from his office 
before conviction and sentence; and that the only remedy was to 
address the king who appointed him. I now refer to the action 
of the House of Lords, as exhibited in their journals. After 
Bacon’s confession, it was “ agreed by the House of Lords to 
move his Majesty to sequester the seal; and the Lords entreated 
the Prince, his Highness, that he would be pleased to move the 
king’s majesty therein, whereunto his Highness condescended, 
and certain lords were appointed to attend the prince to the king 
Lords’ Jour., 30th April 1621. Does this look like a power by 
the Lords to suspend or remove a judicial officer before sentence ? 
How can this language of entreaty and praise of condescension 
be accounted for, on the theory that the power of suspension is 
inherent in the Court of Impeachment ? 

So, when the worthless and obnoxious Scroggs was impeached, 
the House of Lords refused to join the Commons, in addressing 
the king to suspend him from the execution of his office: Jour, 
of the Lords, vol. 13, 738 ; 4 Hatsell 156. The Commons were 
greatly offended by this refusal, and understood it to be a positive 
decision upon the point, that while an office-holder was uncon¬ 
demned, he should not be aftected in the administration of his 
office. Says Sir W. Jones, “ for suspending him (Scroggs) from 
his place, they would not put a question.” “ They mean that he 
shall continue in his place, notwithstanding his impeachment.” 
Said Sir F. Winnington : “ For the king to sequester Scroggs from 
his place, they would not address for it, but leave it to Scrogga’s 
modesty whether he would exercise it or no:” 8 How. S. T. 

Vol. XV.—18 


274 


TRIAL BY IMPEACHMENT. 


213, 214. We all know what Scroggs’s modesty was; and the 
likelihood that his possession of that virtue would interfere unfa¬ 
vorably with his disposition to exercise judicial functions. 

This case shows conclusively that one hundred years before 
the adoption of the Federal Constitution, the House of Commons 
had not the remotest idea that they had the power of suspension, 
or that anything could be done in the case except to frame a joint 
address to the king. Winnington and Jones were then as promi¬ 
nent as Bingham and Boutwell are at Washington to-day. If the 
Lords would not act in Scroggs’s Case, there is no other instance 
likely to happen in which they would interfere. 

Again, Judge Berkley, who was impeached in 1641, in the 
very heat of the English rebellion, sat as sole judge in the King’s 
Bench for one whole term after his impeachment. The same fact 
was true of Baron Trevor, in the Court of Exchequer: 1 Claren¬ 
don’s Hist, of the Rebellion 441, Oxford ed. 1840; 4 Hatsell’s 
Free. 173, note. This happened, too, after power had centered 
in the Commons—for Berkley was not condemned till 1643.^ 

Moreover, instead of claiming the exercise of the right of sus¬ 
pension, the House often proceeded with great delicacy towards 
the accused, on account of his possession of a great oflGice. Thus, 
when Lord Bacon was impeached for misconduct as Lord Chan¬ 
cellor, it was debated whether he should be brought to the bar as 
an ordinary criminal to hear the charges against him, or that 
respect being had to his person as yet having the Crreat Seal, the 
charge should be sent in writing. It was decided that the latter 
course should be adopted: 4 Hatsell 203. 

The only case known to exist, where the Lords acceded to the 
prayers of the Commons in respect to non-performance of judicial 
functions, is one, where there was a resolution that new judicial 
duties should not be conferred upon persons impeached. In 
August 1641, the Lords resolved that the “peccant” judges, 
Berkley and others, should not be named in the commission for 
the circuits, for that for them being thus impeached to become 
judges of men’s lives and estates would be a thing of great 
offence and distraction: 4 Hatsell 133. 

This very Judge Berkley, as has been seen, continued to fill 


* There were only ten Lords present at his conviction. 





TRIAL BY IMPEACHMENT. 


275 

the office of judge to which he had been previously appointed. 
Even in those cases where the Commons asked for a joint address, 
they were careful to disclaim any control over the subject. Thus, 
when during the progress of the revolution (a. D. 1640), they 
desired the Lords to move his Majesty, that one impeached should 
be removed from the king’s service ; they wish that this should 
be considered as an opinion^ but not as a mulct upon him:” 4 
Hatsell 129.^ 

The Commons contrived methods to evade the stringency of 
these rules of procedure. Thus, in one case, they sought to have 
the Duke of Buckingham committed to custody, as they held it 
wrong that he should have so great a post of power and sit as 
a peer in Parliament.” Of course no order of custody could 
properly have such an effect, as bail ought to be received, except 
in capital cases. The necessity of resorting to such an artifice 
only shows the unbending rigor of the rule: 2 How. S. T. 
1302-5. 

Thus far have been considered offices held at the pleasure of 
the king. When the tenure is fixed and permanent, the case is 
still stronger. In that case, the Commons will not even vote to 
address the king for removal from office though no impeachment 
is intended. In other words, they will not in such a case adopt 
a joint resolution asking for the removal of an unpopular and 
obnoxious minister, not charged with crime, though they may ask 
for the dismissal of such a minister from offices held at the king’s 
pleasure. This distinction was strongly marked in a discussion 
concerning one of the Dukes of Buckingham (6 How. S. T. 
1054). The Commons refused to address the king to remove 
the duke from offices in which he had a definite or permanent 
tenure, but asked that he might be removed from offices held at 


• There were undoubtedly fiery orators who claimed at times much more than is 
here conceded. In one case, it was asserted by a member, that, on the moment of 
impeachment the accused became civilly dead, and that therefore his offices should 
be sequestered 1 No one else defended this extravagant and absurd view : 4 How. 
S. T. 56. Sometimes, to avoid odium, the accused lowered his insignia of office. 
Thus, when Lord Middlesex, at the time Lord Treasurer, appeared to answer to an 
impeachment, it was noticed and recorded by the reporter, that he did not have his 
staff in his hand as Lord Treasurer: 2 Id. 1119. This was no doubt a measure of 
policy, while retaining the substance of power, to avoid an irritating exhibition 
of it. 



276 


TRIAL BY IMPEACHMENT. 


the king’s pleasure. There was in this case no impeachment. 
But, immediately afterwards, having resolved to impeach the 
Earl of Arlington, they refused an address for removal from 
any office. There is good reason for the difference of action in 
the two cases; where there is no charge of crime, the king may 
he asked to withdraw his favor; where a crime is alleged, the 
withdrawal of patronage tacitly admits the charge, and exposes 
the accused to a loss of reputation, and may diminish the reason¬ 
able chances for an acquittal 

2. Suspension from office under the United States Consti¬ 
tution, 

Where an officer, like the President, holds his office by a 
certain tenure, the people, according to the principles of law, 
have a right to his continuous services, of which they cannot be 
deprived before his conviction for an impeachable offence, unless 
there is something in the language of the constitution which con¬ 
fers the power of suspension by express words or necessary impli¬ 
cation. If the officer holds at the pleasure of the appointing 
power, he may, of course, be arbitrarily removed by the person 
exercising the power of appointment. 

There is no express language in the constitution conferring the 
power of suspension. There is no necessary implication, because 
it has been shown by English practice that the power to impeach 
does not involve the power to suspend. 

It is well, however, to go further than this. I maintain that 
the history of the constitution, the debates upon it, and contem¬ 
porary documents, plainly show that the power of suspension was 
studiously excluded. 

In proof of this proposition, I cite, among other documents, 
the New York Constitution of 1777. It is well known that this 
instrument was drawn by an eminent lawyer, Mr. Jay, afterwards 
chief justice of the United States. But few lawyers then under¬ 
stood the subject of impeachment.^ It is clear, however, that it 
was thoroughly comprehended in its leading features by Jay, and 


* John Adams, speaking of this subject, says, that in 1774 there was only one 
copy of the State Trials and Selden’s Tract on “ The Judicature of Parliament,” 
in Boston, and, as he believes, not another copy in the United States : 10 Adams’ 
Works 238-9. 





TKIAL BY IMPEACHMENT. 


27T 

the clauses in the Constitution of the United States were largely 
taken verbatim from his draft. Note their correspondence. 


New York Constitution op 1777. 

“ The power of impeaching all offi¬ 
cers of the state for venal and corjupt 
conduct in their respective offices 
[shall] be vested in the representatives 
of the people in assembly. * * * Pre¬ 
vious to the trial of every impeach¬ 
ment, the members of the said court 
[Senate, &c., described in 32d Article] 
shall be respectively sworn truly and 
impartially to try and determine the 
charge, according to evidence. No 
judgment of the said court shall be 
valid unless it shall be assented to by 
two-thirds part of the members then 
present, nor shall it extend further 
than to removal from office and dis¬ 
qualification to hold or enjoy any place 
of honor, trust, or profit under this 
state. But the party so convicted 
shall be nevertheless liable and subject 
to indictment, trial, judgment, and 
punishment, according to the laws 
of the landArt. 33. 


Constitution of the United States. 

The House of Representatives shall 
have the sole power of impeachment: 
Art. 1, g 2, Subd. 5. 

The Senate shall have the sole 
power to try all impeachments. 
When sitting for that purpose, they 
shall be on oath or affirmation. * * * 
No person shall be convicted without 
the concurrence of two-thirds of the 
members present. Judgment in cases 
of impeachment shall not extend fur¬ 
ther than to removal from office and 
disqualification to hold and enjoy any 
office of honor, trust, or profit under 
the United States ; but the party con¬ 
victed shall nevertheless be liable and 
subject to indictment, trial, judgment, 
and punishment according to law: 
Art. 1, I 3, Subd. 6, 7. 


It will be perceived that the variations are simply to adapt the 
language to the general government instead of the state. It is 
believed that those words could have then been found in no other 
constitution but that of New York. Only ten years had elapsed 
since they were first composed. There cannot be the smallest 
doubt that the New York Constitution was before the minds of the 
framers of the United States Constitution. If this be conceded, 
an important question arises. That instrument specifically pro¬ 
vides that in case of the impeachment of the governor and other 
officers there shall be a suspension from office ui)til acquittal. 
Why was this clause omitted from the United States Constitution ? 
The state constitution proceeds: ‘‘ In case of the impeachment 
of the governor or his removal from office., death, or resignation, 
&c., the lieutenant-governor shall exercise all the power pertain¬ 
ing to the office of governor,” &c.: Art. 20. The United States 
Constitution provides, ‘‘ In case of the removal of the president 


278 


TBIAL BY IMPEACHMENT. 


from office^ deaths or rengnation^ or inability to discharge the 
powers and duties of the said office^ the same shall devolve on 
. the vice-president/’ &c. Everything is copied again, e xce pt the 
I clause concerning impeachment. 

Here, in the New York Constitution, was a well-known prece¬ 
dent fixing the right of suspension orofiice by positive law. The 
office of governor devolves, on impeachment, upon the lieutenant- 
governor, as in the case of death. Can it be possible that the 
authors of the United States Constitution intended a suspension, 
and, at the same time, desired to leave the whole matter to a 
contest of strength between Congress and the Executive, and at 
the first impeachment which happened to drive the country to 
the brink of a revolution ? It will be hard to believe, when the 
attention of the eminent lawyers who devised that instrument was 
called to the point, that they failed to provide for it. 
j But more than this; there is direct evidence that the point was 
actually presented in the convention that devised the United States 
constitution, and passed upon. It was first suggested by Gouverneur 
Morris, who was a member of the convention framing the New 
^ York constitution. He said: “ Is impeachment to suspend the 
President’s functions ? If it is not, the mischief will go on. If 
it is, the impeachment will be merely equivalent to a displace¬ 
ment, and will render the executive dependent on those who are 
to impeach 2 Madison Papers 1154. 

At a later day, having come to a definite conclusion, he in 
X conjunction with Mr. Rutledge moved that “ persons impeached 
/ be suspended from their offices until they be tried and acquitted.” ^ 
To this Mr. Madison replied: “ The President is made too de¬ 
pendent already on the Legislature, by the power of one branch 
to try him in consequence of an impeachment by the other. This 
intermediate suspension will put him in the power of one branch 
only. They can at any moment, in order to make way for the 
functions of another who will be more favorable to their views, 
vote a temporary removal of the existing magistrate 3 Madison 
Papers 1572-3. These wise and pregnant words had their due 
infiuence, and the amendment was rejected by the vote of eight 
states to three. 


1 This is almost a literal reproduction of the language of the 32d Article of the 
N. Y. Cons, of 1777. 




TRIAL BY IMPEACHMENT. 


2T9 


There is here the strongest evidence for the conclusion that the 
convention did not suppose that the power to suspend was inherent 
in either branch of the legislature, and that it deliberately in¬ 
tended that the power should not be conferred. 

There is an interesting incident in the life of John Adams, 
which serves to show that he or the Massachusetts lawyers in 
1774 did not suppose that the impeaching house had the power 
of suspension. He argued that the right of impeachment existed 
inherently in the colonial legislature, though there was no mention 
of it in the charter. He succeeded in inducing the Lower House 
to impeach Chief Justice Oliver. The impeachment was ulti¬ 
mately rejected. No one claimed that the lower house could 
suspend Judge Oliver while the impeachment was pending. 
What was accomplished was to so act on public opinion that no 
juryman would take the requisite oath, and thus practically pre¬ 
vent the progress of trials. Mr. Adams says: ‘‘ Chief Justice 
Oliver opened his court as usual. Grand jurors and petit jurors 
refused to take their oaths. They never, as I believe, could pre¬ 
vail on one juror to take the oath. I attended at the bar in two 
counties and heard jurymen say to Chief Justice Oliver to his 
face, ‘The Chief Justice of this court stands impeached by the 
representatives of the people of high crimes and misdemeanors, 
&c. I therefore cannot serve as a juror or take the oath.’ The 
cool, calm, and sedate intrepidity with which those honest free¬ 
holders went through the fiery trial filled my eyes and my 
heart:” 10 Adams’s Works 236. Why expose these brave men 
needlessly to this fiery trial and subject them to punishment for 
contempt of court, if the power of suspension from ofiice existed 
in the impeaching house ? 

But I have already dwelt too long upon this topic, and pass to 
a rapid consideration of the other branches of procedure. The 
articles of impeachment having been prepared and the answer of 
the accused having been received and a reply made, if necessary, 
a day is fixed for the trial. The court in England is organized 
with a pomp and solemnity befitting the occasion.^ The proceed¬ 
ings on the part of the prosecution are conducted by a committee 
of the House known as “ managers.” An opening speech is 

* An excellent and graphic description of the court is found in 7 How. S. T. 
1194, at the trial of the Earl of Stafford, a. d. 1680. 



280 


TRIAL BY IMPEACHMENT. 


made bj one or more of them, who in the old reports is said to 

aggravate” the case.^ 

The trial thenceforward proceeds much in the same way as in 
ordinary criminal prosecutions. Counsel represent the accused ; 
there is the usual compulsory attendance of witnesses. The rules 
of evidence are applied as found in the common-law authorities. 
The peculiar arrangements of the English court necessitate much 
delay, so that years may elapse in a closely contested case. No 
good reason is perceived for the tedious ceremonial of the English 
tribunal, except it be to make the avenues to an impeachment 
as difl&cult as possible, and thus to render this class of trials 
infrequent. 

The rules attending the delivery of the judgment are somewhat 
peculiar. Questions which are considered to involve the merits 

* Sometimes the address of the manager is of sustained dignity and lofty 
eloquence, at other times one is reminded of a so-called “Buncombe” speech in a 
modern legislature. England has had in former times her full share of frothy and 
noisy declaimers, and the bombast and fustian of their speeches have nowhere been 
excelled. I am tempted to give a brief extract from the speech of Captain Mervin 
on the impeachment of Lord Chancellor Bolton, of Ireland (a. d. 1640). In the 
first place he assembles the Lords around an imaginary death-bed. “ My Lords, I 
am commanded to present to you Ireland’s tragedy, the gray-headed Common 
Law’s funeral, the active Statutes’ death and obsequies. Who sees not the Statute 
Laws lying upon their death-beds stabbed by proclamations,” &c. -To avoid the 
smell of mortality, he next rushes into the open air. “ My Lords, having such a 
full and rushing gale to drive me into the depths of these occasions, I can 
hardly steer and confine my course within the compass of your patience,” &c. 
Now, by a single plunge, he descends to the infernal regions. “ My Lords, I 
cannot find in any surviving chronology of times, this season, to be paralleled, 
which makes me view the records among the infernal spirits, to find if matched 
there. The most vehement and traitorous encounter of Satan is deciphered in the 
true example of Job : he overthrows not Job’s Magna Charta, he disseizes him not 
of his inheritance, nor dispossesses him of his leases, but only disrobes him of part 
of his personal estate; when he proceeds to infringe Job’s liberty, he doth not 
pillory him, nor cut off his ears, nor bore him through the tongue, he only spots 
him with some ulcers. Here Satan stays, when these persons by their traitorous 
combinations envy the very blood that runs unspilt in our veins, and by obtruding 
bloody acts will give Satan six ace and the dice.” 

But he has not yet reached the depths of the occasion, and mercifully refrains. 
He closes. “ My Lords, this is the first sitting, and I have only chalked out this 
deformed body of High Treason, I have not drawn it at length, lest it might fright 
you from the further view thereof.” Who shall say after this that there is not 
hope for parliamentary eloquence in this country, even in those states where the 
American Eagle is still a native. One hundred and fifty years later, the same 
court was charmed with the splendid periods of Burke and Sheridan on the impeach¬ 
ment of Warren Hastings. 



TRIAL BY IMPEACHMENT. 


281 


of the case, having been agreed upon, the court is assembled, and 
each member is interrogated by the Lord High Steward, or other 
presiding officer, in the presence of the accused and the House 
of Commons, as to his opinion upon each question. The peers, 
commencing with the one lowest in rank, rise successively in their 
places as the questions are put, and standing uncovered and 
placing their right hands upon their breasts, say Guilty,’’ or 
“Not guilty, upon my honor.” If a majority are of the opinion 
that the accused is not guilty, the impeachtnent is of course dis¬ 
missed. If found guilty, judgment is agreed upon. The next 
step is for the Commons to demand judgment. If they refrain 
from this demand, their action is equivalent to a pardon. So, 
too, the impeachment may he dismissed for want of prosecution. 

In the American practice, there is less formality than in the 
English system. After all parties have been fully heard, the 
Senate proceed to a consideration of the case. After reaching a 
conclusion, the court is assembled for the purpose of giving judg¬ 
ment, and each member rising in his place, answers guilty or not 
guilty to each article of impeachment, as the question is put to 
him. If two-thirds concur in the guilt of the accused on any one 
article, the court proceeds to fix the proper punishment. The 
details of the practice will be found in Story’s Commentaries on 
the Constitution, vol. 2, §§ 805-10 ; Cushing’s Law and Practice 
of Legislative Assemblies, §§ 2535, 2570. 

The pages of the English State Trials are disfigured by the 
details of the revolting punishments which have been inflicted by 
the court. In America, the solemnity of the judgment is not 
affected by the disgust and horror felt at the barbarity of many 
of the English sentences. When the proceedings are conducted 
with due impartiality, there can be no more effective and awful 
sentence than that an entire nation has pronounced one whom it 
has intrusted with a high office, perhaps the highest in its gift, 
unworthy of its confidence. The judgment here may not only 
exclude the officer from his present office, but may disqualify him 
from holding official position in future. It is not necessary that 
the two sentences should be combined. 

IV. General Remarks .—In casting the eye over the long roll 
of English impeachments, extending over a period of about five 
hundred years, the attention is attracted by the illustrious persons 


282 


TEIAL BY IMPEACHMENT. 


who have been called before this most august tribunal of the 
English law. Dukes, earls, barons, and commoners, distinguished 
judges, lawyers, and authors, prominent statesmen and feeble 
women, have either succumbed to or defied the influences which 
there surrounded them. In imagination one can recall the Com¬ 
mons scowling and revengeful, the Lords truckling, submissive, 
and servile, the victim trembling and faint-hearted as he stood 
alone without power of speech or counsel to aid him in his extre¬ 
mity. At other times, the mind reverts to the noble oratory, 
with which some tribune of the people brands for ever the mark 
of infamy upon the man whom the voice of the nation has already 
condemned, and the court only gives form and dignified expression 
to the verdict of mankind. 

This dramatic period of English history has passed away. 
There have been no impeachments for fifty years, and doubtless 
will be none of special importance, unless a revolution takes 
place. There is no political reason for impeachment at the 
present time, as the power of the Commons is never resisted by 
a minister or the Executive. In fact, it may be said in a repre¬ 
sentative government, that the absolute cessation of impeach¬ 
ments indicates that the legislative department has triumphed 
over the executive and his agents. There are some excellent 
remarks upon this topic in May’s Constitutional History of Eng¬ 
land, vol. I., 435, Boston ed., 1863. 

It is clear, however, that the process of impeachment often 
greatly disappoints those who resort to it. At the outset the 
“ pomp and circumstance” of the trial flatter the vanity of the 
managers by attracting to them the attention of the public. But 
the tediousness of the proceeding soon dissipates the interest 
which depends merely upon the novelty of the occasion. Un¬ 
expected difficulties are met with; new events amuse or excite 
the public. The court is bound by precedents, and must proceed 
in accordance with law. At the end the few are convicted and 
the many acquitted. 

f It has been noticed that many of those who have employed 
this means to ruin their enemies have themselves, in the muta¬ 
tions of politics, been the victims of similar proceedings. This 
point was so forcibly stated by Lord Carnarvon in the only 
speech which he ever made in parliament (a. d. 1678), that I 
cannot forbear a quotation. The Earl of Danby (Sir Thomas 
Osborne^ was then before the court. “ My lords: I understand 


TRIAL BY IMPEACHMENT. 


283 


but little of Latin, but a good deal of English, and not a little 
of English history, from which I have learned the mischiefs of 
such kind of prosecutions as these, and the ill-fate of the prose¬ 
cutors. I could bring many instances, and those ancient; but, 
my Lords, I shall go no further than the latter end of Queen 
Elizabeth’s reign, at which time the Earl of Essex was run down 
by Sir Walter Raleigh. My Lord Bacon, he ran down Sir Walter 
Raleigh, and your lordships know what became of my Lord 
Bacon. The Duke of Buckingham, he ran down my Lord Bacon, 
and your lordships know what happened to the Duke of Bucking¬ 
ham. Sir Thomas Wentworth, afterwards Earl of Strafford, ran 
down the Duke of Buckingham, and you all know what became 
of him. Sir Harry Vane, he ran down the Earl of Strafford, 
and your lordships know what became of Sir Harry Vane. 
Chancellor Hyde (Lord Clarendon) ran down Sir Harry Vane, 
and your lordships know what became of the chancellor. Sir 
Thomas Osborne, now Earl of Danby, ran down Chancellor 
Hyde, but what will become of the Earl of Danby your lordships 
best can tell. But let me see that man that dare run the Earl 
of Danby down, and we shall soon see what will become of 
him:” 11 Howell S.T. 632,633. 

This most effective little speech saved, for the time being, the 
Earl of Danby from a commitment.' 

What would be the effect of political impeachments upon our 
system of government, it is difficult to say. All analogy leads 
to the conclusion that they should be avoided until the last 
extremity, and that the trial should be preceded by the unmis¬ 
takable verdict of the people. There is profound wisdom in the 
remark of that sound and calm lawyer. Sergeant Maynard, that 
“ the trial and condemnation of one man at common law will 
work more upon people than ten impeachments12 Howell S. 
T. 1212. It is the weakness of dt, political tribunal that, whether 
justly or not, it labors under the imputation of being moulded 
by faction ; while it is the strength of a common-law court that 
every presumption is made by public opinion in favor of its just¬ 
ness and impartiality. 

* The reporter adds that the Duke of Buckingham, who was no friend to Danby, 

had induced Lord Carnarvon to speak, thinking that as he was heated with wine, 
he would say something to Danby’s disadvantage. But Lord Carnarvon having 
spoken with a remarkable humor and tone, Buckingham was both surprised and 
disappointed, and cried out, The man is inspired, and claret has done the business.* ** 









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